STATE OF FLORIDA

DIVISION OF ADMINISTRATIVE HEARINGS

241 DEVELOPMENT CORPORATION, )

)

Petitioner, )

)

vs. ) Case No. 97-4370BID

) DEPARTMENT OF JUVENILE JUSTICE, )

)

Respondent, )

)

and )

)

THE HASKELL COMPANY, )

)

Intervenor. )

)

RECOMMENDED ORDER

Upon due notice, this cause came on for formal hearing before Ella Jane P. Davis, a duly assigned Administrative Law Judge of the Division of Administrative Hearings on

October 20-22, 1997, in Tallahassee, Florida.

APPEARANCES

For Petitioner: Cheryl G. Stuart, Esquire

David Powell, Esquire Kent Wetherell, Esquire

123 South Calhoun Street Tallahassee, Florida 32301

For Respondent: Scott C. Wright, Esquire

Florida Department of Juvenile Justice Knight Building, Third Floor

2737 Centerview Drive

Tallahassee, Florida 32399

For Intervenor: Christopher Bryant, Esquire

2700 Blairstone Road

Tallahassee, Florida 32301 and

William D. Brinton, Esquire

One Independent Square, Suite 3200 Jacksonville, Florida 32202-5026

STATEMENT OF THE ISSUE

Is the Department of Juvenile Justice's (DJJ's) intended award of the lease-purchase contract pursuant to RFP-P6P02 to The Haskell Company (Haskell) instead of to 241 Development Corporation (241 or 241 Development) contrary to the Agency's governing statutes, rules or policies, or the proposal specifications? See Section 120.57(3)(f), Florida Statutes, (Supp. 1996).

PRELIMINARY STATEMENT

DJJ received five proposals in response to its RFP-P6P02.

Three proposals were found responsive and scored by the Evaluation Committee, including Petitioner 241 Development, Intervenor Haskell, and a third entity, Arthur Building Systems, Inc. (Arthur), DJJ ultimately determined the contract should be awarded to Haskell. 241 was the second-ranked proposer and timely protested the intended award to Haskell. The case was referred to the Division of Administrative Hearings.

Haskell was the only intervenor. Haskell's Motion for Summary Recommended Order and Motion to Dismiss Petitioner for

Lack of Standing was denied on October 13, 1997.

At formal hearing, 241 presented the oral testimony of its Secretary/Treasurer Steven Del Gallo, who was accepted as an expert in the fields of development and construction and construction cost estimating and pricing; Thomas Ruff, who was accepted as an expert in the field of project design, with a specialty in school design in Florida; Michael Broussard;

Terry Virta, who was accepted as an expert in the field of land use planning, zoning, and development regulations;

Steven Meredith, the DJJ contract manager for this solicitation; and DJJ Proposal Evaluation Committee members Mae Washington, Judy Haynes, and Joel Hill. 241 also presented the testimony of Heather Morris, a Planning Technician for St. Johns County, via excerpts of the transcript of her deposition. 241 also presented the deposition testimony of City of Gretna City Manager,

Charles Hayes, in lieu of live testimony.

DJJ called no additional witnesses other than those persons who testified during the presentation of 241's case in chief. By stipulation of the parties, testimony in support of each party's case was elicited by counsel for each party when each witness took the stand during 241 Development's case in chief, regardless of the scope of 241's examination of such witness.

In addition to those persons named above who testified during 241's case in chief, Haskell presented the testimony of Scott Clem, Planning Director for St. Johns County, who was

accepted as an expert in the field of land use planning, and comprehensive plan interpretation and planning; Dale Nederhoff, accepted as an expert in the fields of architecture and engineering with special emphasis in justice architecture; Christopher S. Park, a Vice-President of Haskell; David Balz, accepted as an expert in construction management; and additional excerpts from the deposition of St. Johns County Planning Technician, Heather Morris.

Joint Exhibits 1-20 were stipulated into evidence. 241's Exhibits 1-13 were admitted in evidence. Haskell's Exhibits 1-2 were admitted in evidence. DJJ offered no exhibits.

The transcript of proceedings was filed on October 27, 1997.

By order entered November 26, 1997, the following motions were ruled upon: Haskell's Motion for Official Recognition, 241 Development's Motion to Strike Juvenile Justice's Proposed Recommended Order, and Haskell's Motion to Strike 241's Conclusions of Law 123 and 178. The parties having prolonged the bid procedure by the foregoing post-hearing motions and by the responses thereto, the November 26, 1997, Order established a new aspirational date for entry of this Recommended Order as

December 10, 1997.

All parties' respective post-hearing proposals have been considered in preparation of this Recommended Order.

FINDINGS OF FACT

1. On or about April 9, 1997, DJJ offered RFP Number

   P6P02, "Lease Purchase Agreement for a Multi-Program Juvenile Residential Facility." DJJ subsequently issued four addenda including responses to inquiries.

2. The RFP solicited proposals for the lease/purchase of a residential juvenile detention facility (Project). It sought proposals to co-locate four single-sex facilities on the same grounds: a 60-bed moderate-risk (level 6) half-way house for males; a 60-bed moderate-risk half-way house for females; a 40- bed high-risk (level 8) intensive half-way house for females; and a 25-bed high-risk intensive half-way house for males. (RFP Section I. b)) In addition, DJJ required proposers responding to the RFP to include a fifth program, consisting of a 60-bed high- risk intensive half-way house for males, which would be constructed only if DJJ chose to exercise the option to do so.

3. Proposals were limited to 100 pages in length. However, graphic information presented by proposers was not included within the 100 page limitation. (RFP Section V. c))

4. The RFP required proposers to locate a site for the facilities and to present a design concept narrative and conceptual facility design drawings. (RFP Sections VII. e) 1. and f) 1.)

5. DJJ's RPF expressly notified potential proposers that all costs associated with the site development, permitting, zoning, design, construction, and project management shall be born solely by the proposer, and not by DJJ. (RFP Section III. c)

   and VII. e) 2.)

   
   

6. The RFP also notified proposers that final site plan design and final floor plans would be a "joint effort" of DJJ and the selective proposer. (RFP Section VI. b) and Section VII. f) 3. j)).

7. Following issuance of the RFP in April 1997, four addenda were issued by DJJ responding to various concerns raised by potential proposers and extending the initially scheduled bid opening. No protests were filed by any person to the terms and conditions of the RFP or to any of the addenda. These items therefore constitute unchallenged "specifications." The RFP, as amended, contemplated completion of design and construction within 250 days. (Joint Exhibit 2, Addendum 4 at 2))

8. A pre-proposal conference was held on May 15, 1997. The RFP made provision for questions regarding the RFP to be submitted to DJJ in writing and indicated that such questions would be answered in addenda to the RFP (RFP Section 3.k)).

   Questions received by DJJ, whether orally or in writing, were reduced to writing and the questions and answers were distributed to potential proposers.

9. DJJ opened the proposals on June 19, 1997. Timely proposals were submitted by 241; Haskell; Kvaerner Construction, Inc.; Osborne & Co.; and Arthur.

10. On July 11, 1997, the proposals of Arthur; Kvaerner Construction, Inc.; and Osborne & Co. were rejected by DJJ as on-

    responsive.

    
    

11. DJJ, in the person of Steven Meredith, DJJ's contract manager for this Project, determined that the proposals of 241 and Haskell were each baseline or facially responsive to the RFP. This remains DJJ's official position.

12. DJJ subsequently reversed its determination that Arthur's proposal was non-responsive and submitted it to the Evaluation Committee for scoring along with the 241 and Haskell proposals.

13. Mr. Meredith was not a member of DJJ's Evaluation Committee. Members of DJJ's Evaluation Committee were Mike Dunn, Judy Haynes, Edward Joel Hill, Julie Newberry, and Mae Bell Washington. Ms. Haynes, Mr. Hill, and Ms. Washington testified at formal hearing.

14. Because the RFP limited the proposal length to 100 consecutively numbered pages (exclusive of graphical information), any pages in excess of the 100 page limit were not forwarded by Mr. Meredith to the Evaluation Committee; however, in making his referral, Mr. Meredith relied on the page numbers assigned by each proposer, and did not go behind the numbering assigned by each proposer.

15. On August 27, 1997, DJJ publicly posted a Notice of Intent to Award the Project to 241. Subsequently on the same date, DJJ removed this notice and posted notice of its intent to re-post the award.

16. The proposed award was based on the scoring of the proposals for both substantive content and rental rates offered. In the August 27th posting, 241 was mistakenly determined to have achieved the highest score of the three proposals evaluated, 72.6 points as compared to 65.7 points for Haskell. A summary of the scoring of the contents of the application was attached to the posting, as was a copy of the present value analysis of the proposed rental rates offered by the respective proposers. DJJ performed the present value analysis using a Excel spreadsheet computer program. Within a few hours after posting, Mr. Meredith was notified by two DJJ employees that there was an error in calculation for the present value for Haskell. Mr. Meredith re- calculated the present value of the lease rates proposed by Haskell, which had the effect of changing the score assigned to the Haskell proposal for the proposed lease rates from 15.3 to

    24.3 points. The change was significant enough to change the total score assigned to the Haskell proposal from 65.7 points to

    74.7 points, resulting in the Haskell proposal being the highest scoring proposal.

17. On August 28, 1997, Arthur filed a Notice of Protest of the intended award of the contract to 241.

18. DJJ's basis for re-posting its Notice of Intent to Award the contract to the Haskell Company was that it had improperly evaluated the present value of the lease payments under Haskell's bid, which resulted in the bid being protested.

19. On August 29, 1997, DJJ publicly posted its Notice of Intent to award the Project to Haskell.

20. On that "re-posting," Haskell was the highest ranked proposer with 74.7 points. 241 was second-ranked with 72.6 points.

21. Arthur did not file a Notice of Protest or Formal Written Protest of the intended award to Haskell. On

    September 10, 1997, Arthur withdrew its Notice of Protest for the intended award to 241.

22. 241 timely filed its Notice of Protest and timely filed its Formal Written Protest of the intended award to Haskell pursuant to Section 120.57(3), Florida Statutes. With its Formal Written Protest, 241 delivered to DJJ a $5,000 bond.

23. On September 12, 1997, Haskell filed its Motion and Petition to Intervene, alleging that 241 lacked standing because 241's proposal was unresponsive.

24. On September 18, 1997, DJJ referred the case to the Division of Administrative Hearings.

25. Haskell was granted intervenor status, and by Order of October 13, 1997, Haskell's Motion for Summary Recommended Order and Motion to Dismiss [241] for Lack of Standing was denied.

26. The Project could be located anywhere in Florida.

    
    

27. The 33-acre site proposed by 241 is located in the City of Gretna, Gadsden County.

28. The 21.75-acre site proposed by Haskell is located in

    St. Johns County.

    
    

29. The RFP contained no minimum or maximum site size requirement, and a smaller or larger site is not necessarily advantageous to DJJ, provided the RFP's mandatory and material specifications are met.

30. No site inspection by DJJ personnel was contemplated by the RFP. Therefore, the necessity for accuracy, honesty, and threshold completeness of each bid proposal was all the more essential since the Evaluation Committee would be rating the relative merits of the respective facially responsive proposals.

31. Section IV of the RFP bears the title, "SPECIAL CONDITIONS AND MANDATORY REQUIREMENTS." Section IV of the RFP mandated specific items that had to be included with the proposal in order for it to be considered baseline or facially responsive.

32. Section IV provided, in pertinent part:

    
    

    The following special conditions are mandatory requirements that must be complied with as a condition of submitting a responsive proposal. Failure to comply with any of the following mandatory requirements shall result in proposal rejection for nonresponsiveness.

    
    

33. The Agency reserved the right to waive "minor irregularities."

34. "Minor irregularities" were defined in the RFP in relationship to the Agency's retaining the right to reject all bids. See RFP Section III. GENERAL PROVISIONS m) Right to Reject and RFP Section V. PROPOSAL SUBMISSION REQUIREMENTS j) Acceptance of Proposals, each of which provides:

    The department reserves the right to reject any or all proposals and to waive minor irregularities when to do so would be in the best interest in the State of Florida. Minor irregularities are those which will not have a significant adverse effect on overall competition, costs, or performance (of the contract).

    
    

    Mandatory Zoning Requirement

    
    

35. Section IV. d) of the RFP provides:

    
    

    Mandatory Zoning Requirement.

    In order for a proposal to be considered responsive, at the time of proposal submission, the proposal must contain adequate evidence of existing compliance with local zoning laws for the use intended by the department or evidence of variance for the use intended by the department. The proposal shall contain proof that the proposed parcel is properly zoned. The proof must be in the form of a letter from the zoning or planning department of the county in which the parcel is located. The submission shall also contain a corresponding county or zoning authority description of the permitted uses of the parcel. Letters of intent to obtain zoning are not adequate evidence of an existing zoning for purpose of this requirement. (Underlining in original; boldface supplied)

    The boldface language of this specification demonstrates that this specification is a determinor of baseline or facial "responsiveness" and a mandatory and material specification of the RFP.

36. The foregoing specification addresses current zoning. It does not address current or future Comprehensive Plan or land use functions. It is discussed here with regard to 241 because Haskell contended that if 241 had failed to submit mandatory zoning information, then 241 lacked standing to proceed with its protest, and because 241's protest specifically alleged that Haskell's proposal was unresponsive on this specification.1

37. 241's proposal contained a "Mandatory Zoning Compliance Affidavit," executed by the Mayor of the City of Gretna. It certified that the applicable local land use laws "will permit the use of the Property as a Multi-Program Juvenile Residential Facility operated by the Florida Department of Juvenile Justice," but it does not list any other permitted uses of the parcel. It does not state the applicable zoning classification or the future land use classification.

38. The Gretna City Commission had met on June 18, 1997, the day prior to proposal submittal to DJJ, and voted to authorize the use of the site proposed by 241 for the Project. This City Commission approval is memorialized in the affidavit executed by Gretna's Mayor which was included within 241's proposal. At the same meeting, the City Commission likewise approved an option agreement for 241 to purchase the site from the City of Gretna. Relevant portions of the option to purchase also were included in 241's proposal. Both the option agreement and the affidavit refer to the legal description of the 241 site as "Exhibit A," also included in 241's timely proposal.

39. Although no county declarations were included in 241's proposal, Mr. Meredith, on behalf of DJJ determined that 241 had substantially complied with Section IV. d) of the RFP and its proposal therefore was baseline or facially responsive. He did not alter this opinion at formal hearing.

40. At formal hearing, evidence showed Gretna has

    developed its own Comprehensive Plan. Gretna does not utilize a separate zoning map but uses the applicable Future Land Use Map (FLUM) from its Comprehensive Plan in place of a separate zoning map. This map is used with the districts established in the Land Development Code (LDC), and each zoning district corresponds to a land use category on the FLUM with a list of permitted and prohibited uses. Where the zoning district does not expressly prohibit or permit a particular use, the Gretna City Commission decides. Gretna has no specific use category for juvenile detention facilities, and the 241 site is within the FLUM's "Industrial" category. However, the deposition of Gretna's Mayor confirmed that 241 needs no additional approvals to locate the Project on the proposed site. In light of Gretna's pre-bid opening specific authorization of 241's proposed Project on the site, Haskell's evidence and arguments that "Industrial" versus "Public Use" designations on the FLUM and LDR prohibit this project are not persuasive that 241's proposal is either nonresponsive to Section IV. d) of the RFP or that 241's proposal cannot be accomplished due to existing zoning restrictions. The City has already authorized the Project on a site the City as seller is optioning for sale to 241, at a location in close proximity to an existing adult correctional facility.2

41. In addressing Section IV. d) of the RFP, Haskell's timely proposal included a June 16, 1997, letter from the

    St. Johns County Planning Department which addressed both zoning

    and land use status of Haskell's proposed site. This letter was signed by County Planning Technician Heather Morris. It referred to Parcel No. 038480-0010 and indicated that the parcel was zoned "Open Rural." The Haskell proposal also included a list of permitted uses within the "Open Rural" classification, including "governmental uses." Ms. Morris' letter referenced "Exhibit A" as a site plan, but no "Exhibit A" accompanied Ms. Morris'

    June 16, 1997, letter in Haskell's proposal. Nonetheless, the parcel number on Ms. Morris' letter matched the parcel number in the property information paragraph on page 9, under "Site Information," in Haskell's proposal, and in the Purchase Sale Agreement for the Haskell site also submitted within the Haskell proposal.

42. Evidence at formal hearing showed the original "Exhibit A" to the June 16, 1997, Morris letter to be merely a hand-drawn approximation of the proposed site layout. However, Section VII. j) of the RFP provided that site approval would be a "joint effort" of DJJ and the proposer DJJ ultimately selected. Thus, however characterized, "Exhibit A," and even all refinements up through actual opening of the facility, are not necessarily final site layouts.

43. Ms. Morris' June 16, 1997, letter also indicated that the subject site was within "Mixed Use" and "B Reserve Residential" classifications on the St. Johns County Comprehensive Plan's FLUM and that the use of the property for a

    juvenile residential treatment facility, "owned and operated by the state of Florida" was consistent with both "Open Rural" zoning and "Mixed Use" future land use districting.

44. Despite considerable testimony that Ms. Morris' June 16, 1997, letter may have been in error in stating that

    Haskell's proposal and proposed site evidence existing compliance with current local zoning laws and land use functions for the use intended by the Agency and despite testimony that several months may be necessary to finalize county "authorization" to construct the proposed facility, the fact remains that Ms. Morris and St.

    Johns County have not altered the opinion given by Ms. Morris in her June 16, 1997 letter.

45. A second letter was issued by Ms. Morris on September 16, 1997, following filing of 241's protest herein.

    That letter confirms that the site plan submitted with Haskell's timely proposal remains consistent with both the zoning and future land use designations for the subject site, and that St. Johns County's position is unchanged by any refinement in the site plan. Likewise, the current Planning Director of St. Johns County testified that the Haskell site "has been and still is" considered a "Mixed Use" district by St. Johns County.

46. Under the St. Johns County Comprehensive Plan, "the interpretation of the Plan and Maps by County staff shall consistently be afforded appropriate deference and will not be overturned in the absence of clear and convincing evidence of

    misapplication of applicable criteria."

    
    

47. Upon the foregoing findings of fact, the evidence and 241's arguments that Haskell was not responsive to the RFP's mandatory zoning requirement and that existing zoning or land use functions currently in effect will prohibit a joint permitting and construction effort by Haskell and DJJ are rejected as neither competent nor substantial and as unproven and unpersuasive.

    Haskell's Control of Property

    
    

48. Section IV. c) of the RFP addresses "control" of the proposed site by the actual proposer as follows:

Control of Property.

This pertains to the site of future structure(s) and proposed parking areas. To submit a responsive proposal, a prospective lessor must provide evidence of the following with the proposal.

1. Be the owner of record of the site of the proposed facility and parking areas;

   
   

2. In lieu of ownership, the proposing entity may possess an Option to Purchase the facility (as defined in Section III) being proposed and submit documentation of such option to Purchase the facility from the owner of record with a copy of the Deed(s), Bill of Sale, etc. A copy of the recorded deed resulting from option exercise must be presented to the department within 60 days of notification of contract award. Under no circumstances will documents be accepted after the 60- day period; and,

   
   

3. Submit a copy of the General Warranty Deed (Underlining in original; boldface supplied).

The boldface language clearly demonstrates that in order to submit a responsive proposal, "the proposing entity must possess

at the date of bid opening an Option to Purchase . . . and submit documentation of such option . . . from the owner of record with a copy of the Deed(s) . . . etc."

1. In this case, the proposing entity is "The Haskell Company." (See Letter of Interest pages 1-2 of Haskell Proposal and the PUR). Pages 15-19 of Haskell's proposal were directed towards meeting specification IV. c) and establishing control. Pages 15-17 constituted a Purchase Sale Agreement (option to purchase) between "Seller," Jessee [sic] Minors, and "Purchaser," Christopher S. Parks, signing on behalf of Haskell Realty Developers Ltd. V. Pages 18-19 constituted a Special Warranty Deed in Jesse Minor's name. Page 9 of the proposal recites that, "The project site, which is approximately 21.75 acres, has been purchased by The Haskell Company (Haskell Realty Developers V, Inc.) for the purpose of developing this project." Also, Attachment A (pricing proposal) of Haskell's proposal shows "Haskell Realty Developers V, Inc." (Lessor) typed on a line which required, "If lease is to be written in a name other than proposer, indicate proposer name."

2. Page 9 and pages 15-19 of Haskell's proposal contradict each other. Mr. Meredith apparently placed no reliance on the page 9 representation that the parcel already had been purchased.

3. Since all of the remaining proposal documentation clearly shows that Haskell has not yet purchased the subject site

   and since Mr. Meredith was in no way misled by the representation on page 9 of Haskell's proposal, the language found there that the parcel had already been purchased should not disqualify Haskell's entire proposal.

4. 241's allegation that some of Haskell's control documents do not match each other as to the parcel or legal description proposed is rejected as unproven. The Purchase Sale Agreement may encompass more land than Haskell's proposal offered DJJ, but no portion of the property offered DJJ is excluded from the land named pursuant to the Purchase Agreement attached to Haskell's proposal.

5. Mr. Meredith had noted the difference in entities named throughout the Haskell proposal, but he assumed they were identical and therefore determined that the Haskell proposal was responsive on the baseline responsiveness requirement of "control," prior to passing the proposals on to the Evaluation Committee members for their review.

6. At formal hearing, Mr. Meredith testified as DJJ's Agency Representative that if the entities named in the Haskell

   
   

   proposal were not the same, the Agency would not consider Haskell's proposal to be responsive.

7. At formal hearing, The Haskell Company's Vice President, Christopher S. Park, admitted that typed references in its proposal to "Haskell Realty Developers V, Inc.," were wrong.

   Haskell had intended those references to be, "Haskell Realty Developers Ltd. V," a limited partnership.

8. At formal hearing, it was shown that an entity of "Haskell Realty Developers V, Inc." has never existed.

9. Official corporation records of the Florida Secretary of State show that on April 25, 1997, "Haskell Realty Developers Ltd. V" filed an Amended and Restated Certificate of Limited Partnership. The only change to its previously-filed Certificate was to reflect a new General Partner, "Utility Roofing and Construction, Inc." The original Certificate shows 17 limited partners, all of whom are individuals.

10. There is neither documentary nor direct competent evidence that the proposing entity, "The Haskell Company" directly controls "Haskell Realty Developers Ltd. V" or derivatively controls "Haskell Realty Developers Ltd. V" through Utility Roofing and Construction, Inc.3

11. Accordingly, the Haskell proposal was unresponsive in demonstrating control by the proposer of the proposed Project site.

    Moot Issues

    
    

12. Due to the foregoing Findings of Fact, it is unnecessary to address the remainder of the evidence or 241's additional arguments as to any other alleged lack of responsiveness of Haskell's proposal or flaws in DJJ's evaluation of Haskell's proposal.

    241's Responsiveness Considered De Novo

    
    

13. The only lack of responsiveness alleged against 241 by the pleadings was on the issue of "The Mandatory Zoning Requirement," as set out above. However, in the context of this de novo proceeding under the amended Section 120.57(3)(f), Florida Statutes, it would remiss not to address 241's proposal's omission of a financial statement by its proposed contractor.4

14. Section V of the RFP addresses PROPOSAL SUBMISSION REQUIREMENTS. Under Subsection i)2.d. thereof, a proposal submission requirement for the proposer's construction contractor is a "Completed Experience Questionnaire and Contractor's Financial Statement (Revised 4/95)."

15. This requirement was also listed under Part B on Attachment B, the "Essential Requirements Checklist." Attachment B was provided to all potential proposers as part of the RFP. Despite some "mere convenience" language on Attachment B,5

    Section V of the RFP appears to make the dual requirement of a contractor's questionnaire and financial statement mandatory. Section V.2.b.1. states, in pertinent part,

    Volume II Shall contain items required for A/E and contractor submittal as outlined in Attachment B.

    
    

    Section V.i.2. states, with regard to the contractor information on page 14:

    Proposal must comply with these instructions and include the requested data.

    
    

16. Mr. Meredith, who participated in drafting the RFP and who reviewed the submitted proposals for facial responsiveness, clearly treated the inclusion of a completed construction contractor's questionnaire and financial statement as a mandatory requirement. In order to assess baseline or facial responsiveness, Mr. Meredith created his own "Essential Requirements Checklist" (Joint Exhibit 6) which he testified was based on RFP Section IV's SPECIAL CONDITIONS AND MANDATORY REQUIREMENTS. However, he acknowledged that other RFP items outside Section IV also might affect responsiveness, and his checklist (Joint Exhibit 6) also included as item 15) d), "Completed Experience Questionnaire Contract's [sic] Financial Statement," as a responsiveness requirement. In his review for baseline or facial responsiveness of each proposal, Mr. Meredith checked off both 241 and The Haskell Company as complying with this requirement.

17. However, the evidence adduced at formal hearing shows

    that 241 submitted its contractor's experience questionnaire but not its contractor's financial statement. 241's contractor, Opus South, expressly declined to provide the required financial information for inclusion in 241's proposal, citing its "strict corporate policy" against making its financial statements public. It suggested that it be contacted for further information, but such contact would clearly be outside of the proposal and would amend the proposal after opening.

18. DJJ Evaluation Committee members assigned different scores in the area of financial capability.

19. It can only be concluded that the RFP contemplated the contractor's financial statement as being a mandatory specification, and the evidence as a whole does not indicate that the Agency, either in the person of Mr. Meredith or the Evaluation Committee members, made a conscious decision to waive the RFP requirement for a contractor's financial statement pursuant to the RFP reservation of a right to waive minor irregularities.6

20. Also, the evidence in this cause does not affirmatively demonstrate that the absence of a contractor's financial statement could constitute a "minor irregularity" which will not have a significant adverse affect on overall competition, costs, or performance. Other proposers who actually submitted contractors' financial statements would be prejudiced if this requirement were waived. A contractor whose financial

    situation is not known may affect costs and performance of a contract. Waiver of this requirement clearly would be contrary

    to competition and have a potential adverse affect on costs and performance.

21. Accordingly, it must be determined upon the evidence adduced in the de novo formal hearing, that 241 was also unresponsive to the RFP as written.

    CONCLUSIONS OF LAW

    
    

22. The Division of Administrative Hearings has jurisdiction over the parties and subject matter of this cause, pursuant to Sections 120.57(1) and 120.57(3)(f), Florida Statutes.

23. The parties have stipulated that Petitioner and Intervenor each have standing, but that their stipulation does not include a stipulation that both herein were, in fact, responsive.

24. Unless otherwise provided by statute, the burden of proof rests on the party protesting the proposed agency action, in this case, 241 Development. Since this is a competitive procurement protest, other than a rejection of all bids, the Administrative Law Judge's authority is to determine whether the Agency's proposed action in this case and proposed award to Haskell, is contrary to the Agency's rules or policies or the specifications. See Section 120.57(3)(f), Florida Statutes. (Supp. 1996)

25. The standard of proof in such proceedings is whether the proposed agency award is clearly erroneous, contrary to

    competition, arbitrary, or capricious. See Section 120.57(3)(f), Florida Statutes. (Supp. 1996)

26. If the Agency's proposed actions factually and legally are shown to be clearly erroneous, contrary to competition, arbitrary or capricious, the undersigned fact finder is expected to correct the proposed agency action based on the de novo hearing record without creating further delay. However, the fact finder is not expected to substitute her subjective judgment for that of evaluators otherwise properly exercised. See G Tech Corporation v. State of Florida, Department of the Lottery and Automated Wagering International, Inc., DOAH Case No. 96-5461BID, Recommended Order entered May 5, 1997.

27. There is no presumption that the agency's initial determination of baseline or facial responsiveness is correct. There is no presumption that the agency's intended disposition is correct. The evidence herein shows that Petitioner 241 Development was not facially responsive to the RFP due to its failure to include a contractor's financial statement, but that element alone does not, under current law, mean that Haskell prevails.

28. The evidence further shows that DJJ's assumption that all the entities named in The Haskell Company's proposal were identical has no basis in fact or logic. See Bay Plaza I v. Department of Health and Rehabilitative Services, 11 FALR 2854, 2865-66, Department of Health and Rehabilitative Services,

    April 13, 1989; Proctor v. Florida Department of Health and Rehabilitative Services, DOAH Case No. 91-5963BID (Recommended Order entered December 20, 1991); Final Order revised in unpublished Case 92-379, First District Court of Appeal June 22, 1992 with following Amended Final Order.

29. Corporations and limited partnerships are distinct entities. See generally Chapters 607 and 620, Florida Statutes. The evidence presented as to the nature of the relationship between the proposer, The Haskell Company, and Haskell Realty Developers Ltd. V does not alter the fact that, as a matter of law, the proposing entity, The Haskell Company, does not "possess an option to purchase" the proposed site since the option is held by a separate legal entity, Haskell Realty Developers Ltd. V.

30. A limited partnership gains its identity from its General Partner, See Nichols v. Paulucci, 652 So. 2d 389 (Fla. 5th DCA 1995); See also Section 620.125(2), Florida Statutes. The Haskell Company is not the general partner of Haskell Realty Developers Ltd. V; Utility Roofing and Construction, Inc. is. There is no competent evidence that The Haskell Company is a limited partner of the limited partnership. Even so, the record in this proceeding contains no competent evidence that The Haskell Company controls the limited partnership. See Section

    620.129, Florida Statutes (enumerating the permissible activities of limited partners). Haskell must accordingly be deemed unresponsive on the issue of control.

31. Since Arthur has apparently dropped out of this solicitation, and it appears that due to the unresponsiveness of both Petitioner 241 and Intervenor Haskell, there are no responsive bidders, it would be inappropriate even under the recent statutory amendments, for the undersigned to proceed to try to evaluate the unresponsive bids.

RECOMMENDATION

Upon the foregoing findings of fact and conclusions of law, it is

RECOMMENDED that the Department of Juvenile Justice reject all bids and re-advertise for the subject Project.

RECOMMENDED this 11th day of December, 1997, in Tallahassee, Leon County, Florida.

ELLA JANE P. DAVIS

Administrative Law Judge

Division of Administrative Hearings The DeSoto Building

1230 Apalachee Parkway

Tallahassee, Florida 32399-3060

(904) 488-9675 SUNCOM 278-9675

Fax Filing (904) 921-6847

Filed with the Clerk of the Division of Administrative Hearings this 11th day of December, 1997.

ENDNOTES

1/ The most pervasive thrust of Petitioner's and Intervenor's theories of the case addressed each one's ability to fulfill the contract in a timely manner.

241 asserted that although Haskell had attempted to meet Section IV. d) of the RFP by including zoning information in its proposal, Haskell's Project did not comply with the St. Johns County Comprehensive Land Use Plan and/or the Project as proposed by Haskell could not feasibly comply therewith or, alternatively, Haskell could not accomplish rezoning or a variance within the

250 day "up and running" provision of RFP Addendum 4. Haskell sought to defend against this allegation by showing that its

project did, in fact, comply with St. Johns County's Comprehensive Plan.

Haskell asserted that 241's proposal failed even baseline responsiveness on Section IV. d) of the RFP because 241 had submitted Gretna's Comprehensive Plan compliance and information for the zoning information required by the RFP. 241 sought to defend against this allegation by showing that the Gretna, Gadsden County Comprehensive Plan simultaneously constituted Gretna's zoning map.

Due to the foregoing posture of the case, each party was permitted to present evidence concerning the respective Comprehensive Plans of Gretna, Gadsden County and St. Johns County, over objections that to do so offended Section 163.3215, Florida Statutes, and Section 120.57(3)(f)'s prohibition that,"

. . . no submissions made after the proposal opening amending or supplementing the bid proposal shall be considered."

2/ In making this Finding of Fact, the undersigned notes that the parties' respective post-hearing proposed orders are confusing in that the page numbers of the 241 exhibit actually admitted in evidence do not always match the recorded testimony, but the content does.

3/ In making this Finding of Fact, the undersigned has not overlooked Mr. Park's testimony that Utility Roofing and Construction, Inc. owns 1%, and The Haskell Company owns 99%, of the limited partnership, which holds the option to purchase the parcel proposed by The Haskell Company, but no corporate documents corroborated his testimony. Likewise, his testimony was without adequate predicate to render it competent in light of the contradictory Secretary of State's record search and documentation.

4/ This issue was addressed at formal hearing only in relation to how the Evaluation Committee scored 241's omission after facial responsiveness was determined by Mr. Meredith.

5/ Attachment B, the "Essential Requirements Checklist" includes the following language

This checklist is for convenience only. The Department of Juvenile Justice makes no representation regarding use of this checklist. Refer to remainder of RFP for all requirements.

6/ The best that can be said is that reviewers came up with different scores for financial capability of the proposers after

considering the missing financial statement with different weights. The fact that some reviewers were operating from a DMS module, exclusively or in addition to scoring instructions from Mr. Meredith, does not clarify what was actually happening with regard to the contractor's financial statement.

COPIES FURNISHED:

Calvin Ross, Secretary Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

Janet Ferris, General Counsel Department of Juvenile Justice 2737 Centerview Drive

Tallahassee, Florida 32399-3100

Walter J. Smith, Esquire Post Office Box 2379

Fort Walton Beach, Florida 32549

Cheryl G. Stuart, Esquire David L. Powell, Esquire

T. Kent Wetherell, II, Esquire Hopping, Green, Sams & Smith, P.A. Post Office Box 6256

Tallahassee, Florida 32314

Scott Wright, Esquire Department of Juvenile Justice Knight Building, Third Floor Koger Executive Center

2737 Centerview Drive

Tallahassee, Florida 32399-3100

M. Christopher Bryant, Esquire Post Office Box 6507 Tallahassee, Florida 32314-6507

William D. Brinton, Esquire One Independent Square Suite 3200

Jacksonville, Florida 32202-5026

NOTICE OF RIGHT TO SUBMIT EXCEPTIONS

All parties have the right to submit written exceptions within 15

days from the date of this Recommended Order. Any exceptions to this Recommended Order should be filed with the agency that will issue the final order in this case.

Docket for Case No: 97-004370BID

Orders for Case No: 97-004370BID